NC Judge Reprimanded For SCRA Non-Compliance

Even if you are a respected judge, you are not above scrutiny for a failure to abide by the statutes of the Servicemembers Civil Relief Act.

According to North Carolina court documents, Judge Brenda Branch of the General Court of Justice, District Court Division 6A, State of North Carolina, is to be publicly reprimanded for conduct in a recent case on the recommendation of the Judicial Standards Commission and the decision of the Supreme Court of North Carolina. Branch failed to take into account the defendant’s rights under the Servicemembers Civil Relief Act, and as such, her conduct was concluded to be in violation of Canons 1, 2A, 3A(1) and 3A(4) of the North Carolina Code of Judicial Conduct and for conduct “prejudicial to the administration of justice that brings the judicial office into disrepute in violation of N.C.G.S. § 7A-376(b).”

If your eyes just glossed over upon reading that, you are doubtless not alone. Let’s take a moment to unpack the above and work our way through the specifics of this case.

Foster v. Foster

The case in question was thoroughly documented by the investigative panel of the Judicial Standards Commission and summarized in the NC Supreme Court opinion on the matter.

In this matter, Defendant Jason Foster was served with a civil complaint for child custody, child support, alimony, equitable distribution, post-separation support and attorney fees. At this time, Foster was serving as an active duty soldier of the rank Sergeant First Class and stationed in Daegu, South Korea.

Foster responded to the complaint in a letter to the court dated July 16, 2012, by writing to request a stay of proceedings pursuant to his rights under the Servicemembers Civil Relief Act. He claimed that his military service would not permit him to participate in court proceedings until April 30, 2013, at the earliest. He wrote, “legal counsel informs me that federal law requires a stay of proceedings for a minimum of 90 days for servicemembers on active duty,” which is quite correct. The defendant’s commanding officer also wrote to the court, verifying that his duty would preclude his participation in court until April 2013 and that “SFC Jason Foster is needed by this unit because he is essential to the mission.”

In early August 2012, the plaintiff’s counsel requested an order from Judge Branch seeking further information from the defendant regarding his SCRA rights and availability before ruling on the stay of proceedings. Branch asked that the plaintiff’s attorney provide supporting documents pursuant to this request, giving her an opportunity to present arguments and evidence challenging the defendant’s claim – this is important, as neither the defendant nor any representation for the defendant were present during this hearing.

Branch referred to the passage in Foster’s letter that mentions “the advice of counsel” as evidence that he had legal representation, despite the fact that no contact for that representation was given nor reason to believe that such representation had the right to practice law in North Carolina.

In this hearing, the plaintiff’s attorney provided Branch with a publication titled “Crossing the Military Minefield: A Judge’s Guide to Military Divorce in North Carolina” by Mark E. Sullivan. Sullivan is a North Carolina lawyer who specializes in the above field, but the Supreme Court’s opinion still refers to this publication as “undated” and “unsourced.” In it, Sullivan details a way in which a judge can deny an active duty servicemember a stay by finding that he or she failed to show “good faith and diligence” in responding to a court action. The publication also explicitly says that the defendant should be appointed counsel, but unfortunately, Foster was not made aware of the plaintiff’s objections to his request for a stay.

Branch entered an order on Sept. 4, 2012, declaring that the defendant and his C.O. did not provide sufficient information to justify a stay and gave Foster an Oct. 1, 2012, deadline to provide further information. Tracking information cited by the Supreme Court opinion demonstrated that this order didn’t make it to the defendant until Sept. 24, 2012, which, the opinion notes, was less than one week before the deadline. Unsurprisingly, no response was given before that date.

This led directly to Branch’s denial of the defendant’s stay on Nov. 5, 2012, citing “a lack of good faith and due diligence.” In subsequent proceedings, default judgments against the defendant were entered, despite his not being present or represented at the proceedings.

SCRA Violation

Under the SCRA, an active duty soldier who requests a stay of proceedings is entitled to at least a period of 90 days. Further, as the Supreme Court opinion notes, the SCRA states in plain language that default judgment may not be entered against an absent member if that member appears to be in military service if an attorney has not first been appointed to represent him or her.

Despite the passage in Foster’s letter that refers to “legal counsel,” sufficient evidence was not present to reach the conclusion that Foster had retained legal representation.

Public Reprimand

The North Carolina Supreme Court took note of the fact that Branch’s misconduct did not appear to be willful or intentional, and that Branch appeared to believe at all times that she was acting “within the scope of her discretion and that she was acting to preserve the integrity of the court.” Despite this, she was nonetheless found to be in violation of Canons 1, 2A, 3A(1) and 3A(4) of the North Carolina Code of Judicial Conduct.

The NC Code of Judicial Conduct consists of seven Canons of legal responsibility for judges in the state. Canon 1 reads simply “A judge should uphold the integrity and independence of the judiciary.” By accidentally violating a defendant in her court’s SCRA rights, Branch failed this test.

Canon 2A is very similar in this case, insisting that judges must respect and comply with the law – again, by failing to uphold the defendant’s SCRA rights, Branch violated this statute. Canon 3A(1) reads that judges must be “faithful to the law and maintain professional competence in it.” By failing to do her own research into the SCRA and by relying too heavily on the knowledge of the plaintiff’s representation in this case, Branch failed to maintain that professional competence in the law. Finally, Canon 3A(4) insists that judges must afford any person legally interested in a proceeding full right to be heard according to the law. By failing to appoint Foster representation, his right to be heard was not recognized.

The NC Supreme Court’s decision to limit Branch’s punishment to a simple public reprimand was probably correct. While she did not abide by the statutes of the SCRA, it is apparent that she believed her actions were in keeping with both party’s rights at all times. This case should demonstrate that even judges are not impervious to penalties for a failure to comply with the SCRA, even in the event of ignorance of the law.

Attorney Roy Kaufmann serves as the Director of the Servicemembers Civil Relief Act Centralized Verification Service, located in Washington, D.C. As a recognized authority on the Servicemembers Civil Relief Act, Mr. Kaufmann has published hundreds of articles and hosted many webinars. His teachings help law firms and businesses to remain compliant with the SCRA rules and regulations so as to avoid costly fines.